Telling the Difference: Nineteenth-Century Legal Narratives of Racial Taxonomy


  • He wishes to thank his fellow participants in the “Reading Race, Reading Law” session of the 1997 meeting of the American Studies Association: Melissa Cole, Mark Weiner, and Jo Ann Woodsum. He also wishes to acknowledge his scholarly and intellectual debts to Robert A. Ferguson, Arnold Krupat, and Priscilla Wald, each of whom read an earlier version of this essay and contributed to the thinking that led to its completion.


“Telling the Difference” focuses on two legal opinions from the nineteenth century that carefully distinguish between those who should be racially marked as nonwhite and those who should not. In the first instance, a Michigan judge decides the appropriate “blood fraction” of African-American heritage that would prohibit a free man from voting. In the second, a New Mexico judge rules that the Native Americans of Cochiti Pueblo are not legally “Indians,” and therefore not entitled to federal protection of their land. The oracle uses these examples to advance two central claims: that we must pay close attention to the narrative logic of racial identification in order to understand the powerful contradictions still at the heart of our conversations about race, and that in doing so we should consider that race has always been multiply constructed in the United States.